The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1887-11-17
AN OPINION.

Hon. George Ticknor Curtis has writ
ten and published in pamphlet form an
opinion on the Constitutional validity
of certain clauses in the proposed State
Constitution for Utah, the clauses, as
will ct once be understood being those
in relation to polygamy and bigamy.
In this paper the distinguished gentle
man is more lat home" than he was in
his recent article in The Forum. Here
he deals wholly with constitu-
tional law, in which field he has
attained eminence, and in this
paper he sustains his reputation as one
of the ablest constitutional lawyers
and cleverest iogicians in the land. He
goes at once into the question OF the
power of the Federal government and
the State to make such a compact as is
proposed in the State Constitution
a compact by which the State binds
;tself not to amend the Constitution IN
certain respects without the consent OF
Congress, and also by which the Coi-
stitution restricts the pardonlng power
il cases of polygamy to those instances
approved by the President of the United
States, and proceeds to show that 1t Is
perfectly competent for the Fed
eral government and the State
70 make the compact, which
will be binding on each. The
States are prohibited from making
agreements with each other without the
consent of Congress, but they may and
do covenant perpetusliy and irrey-
ocably, by and through the Constitu-
tionsof the United States, that the
Federal Government shall have and e1-
ercise all the powers ceded to 1t BY their
assent to the Constitution, and that no
State shall exercise any powers prohio
tied to it by that instrument" He as
serts that the idea of compacts, cove
nants and agreements between the sep
arate States is imbedded in the Federal
Constitution and forms its princi-
nal strength. 1t is that idea which
gave the Federal government the
authority to assert its existence and
powers against an attempt OF the
Southern States to break their COM
nacts with the United States. It being
competent for the State and the United
States to form q compact by which GER
tain mowers are to be retained by the
State and certain others exercised by
the United States, the Federal govern
ment is clothed with authority to en-
force the provisions of the compact
when a State undertakes to break il.
In such a case the action would not be
AGAINST the State in its corporate ca
pecity, but by appropriate legislation
To puuish individuals Who should
violate the covenant. So far the States
have agreed to practically the
same conditions and made the
same compsots. but that fact
does not preclude a new State from
surrendering portion OF its sovereignty
which the other States retain, nor from
the Federal government and the new
State taking :nto account the social or
politicaI conditions existing in the local
community. States must De admitted
on an equality, and if, when new
State enters the Union it makes a
covenant wi h the United States in
diminu,io or limitation of its sover-
elgnty, in a way in which other States
have not limited theirs, the new State
is not placed in the Union on an in
equality with the other States. - Mr..
Curtis employs the present case as an
illustration: -.
The people of Utah propose to covenant
with the United States, in their state Con-
stitution that the State Executive shall not
grant a pardon to q person convicted OF
polygsmy or bigamy, without the Con,
cur, ence of the President OF the United
STATES; and that they, the p ople OF the State
of Utah. will never amend or cnange that
part OF the Constitution which makes and
Furnishes the offences OF polygamy and
bigany, without the consent OF Congress.
WHY have they offered to make this conf
psci? Because there is 8 peculiarly in
their past social condition which requires
that in order to remove possible objection
10 their admission into the Union as
State, they shall make this compact IN
dimnution of what would otherwise be their
unlimited sovereign right to change their
Constitution in this respect at their own
pleasure. 1t has nothing to do with the
Con titutional validity of this compact that
other S5stes have not made it, or have not
BEEN in the same situation, or have not had
the same motive.
Mr.. Curtis regards Section 8 of
E article L of the Federal Constitution
as the only source of the powers Of
Congress not only to admit new States
but to create and govern the Terri
tories, and declares that Congress is by
the section placed under the obligation
of a pubic trust TO permit the Terri
tories to become States, and 20 bring
them into the Union "when the Peep
desire it, and they have sufficient popu'
Iation and resources to maintain
State government. republican in its
form and spirit" After the Territory